Mr X and the Department of Enterprise, Trade and Employment

Case 98166. Request for records relating to the future financial funding of FÁS (post-1999) and information on FÁS International held in the Tanaiste's Office or relevant liaison section - whether release of records relating to a concluded deliberative process of the Department is contrary to the public interest - section 20(1) - whether release of records would disclose positions taken for the purpose of negotiations being carried on by the Department - section 21(1)(c) - public interest - whether Department was justified in charging a fee at internal review - section 47

Case Summary

Facts

The requester sought access to "(a) information on the future financial funding of FÁS post-1999 and (b) information on FÁS International held in the Tanaiste's Office or relevant liaison section". The Department identified a number of records relating to the Estimates process, the Multi - Annual Budgeting (MAB) process and the European Structural Funds (ESF) as within the scope of part (a) of the request but refused to release these records. It released all records relating to FÁS International Consulting (FIC) with the exception of one record. It also decided to charge a fee at internal review.

Decision

The Commissioner found that there was nothing in the FOI Act to preclude a public body from seeking a fee on internal review. He found that the record relating to FIC was a covering memorandum from FIC to the Department giving some background to a summary of a proposal, which was attached. He found that the summary contained information of the kind envisaged in section 27(1)(b) in that it would disclose details of the methodology to be employed by FIC in completing the proposed project. The Commissioner found that there was no public interest in release of the summary. He found that the Department had not explained how release of the covering memorandum could impact in the competitive position of FIC, other than to suggest that it may attract the interest of other companies in the same business. He said that the Department had not satisfied him as to how this knowledge could impact on FIC and found it was not justified in relying on section 27(1)(b) in refusing access to this part of the record.

He found that to release records giving details of the negotiations, between the Department of Finance and other Departments, on the Estimates and projections for future years, during the course of those negotiations, may be contrary to the public interest. However, he found that this argument does not apply once the Estimates and projections have been agreed and the Revised Estimates Volume published. He found that release of such records was not contrary to the public interest and that section 20(1) did not apply to these records.

In respect of the records relating to the post 1999 ESF negotiations, for which section 21(1)(c) was claimed, the Commissioner took account of the fact that the negotiations in question had concluded and that section 21(1)(c) does not contain a harm test (unlike section 21(1)(a) and 21(1)(b)). He found that a record is capable of qualifying for exemption under section 21(1)(c) despite the fact that any negotiating positions, plans etc. which it might disclose relate to past negotiations, and even if such positions, plans etc. are of no conceivable relevance to any current or future negotiations. He noted that, while section 21(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations in some way or to cause some other harm, and disclosures which do not, he found that such a distinction should be made in applying the public interest test in section 21(2) to records which disclose positions taken etc. for the purposes of past negotiations. He directed the release of the records.

Date of Decision: 15.03.2001

Our Reference: 98166

15.03.2001

Mr X

Dear Mr X

I refer to your application under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the Department of Enterprise, Trade and Employment ("the Department") to refuse you access to records relating to "(a) information on the future financial funding of FÁS post 1999 and (b) information on FÁS International held in the Tanaiste's Office or relevant liaison section".

Background

In the course of its decision on this request the Department prepared a schedule of the records relating to the request for information on FÁS International Consulting (FIC) which it sent to you on 13 November 1998. It identified records relating to the Estimates process, the Multi-annual Budgeting (MAB) process and European Structural Funds (ESF) as within the scope of part (a) of the request. The Department took the view that the request related to records referring to the funding of FÁS for 2000 and beyond and that any references to 1998 and 1999 estimates figures were outside the scope of the request. There is a total of 46 records relating to the Estimates/MABs and 12 records relating to European Social Funds, which I describe later in this decision.

In the course of the review the Department has agreed to the release of all the records relating to FIC with the exception of one record, numbered 20 on its schedule.

Therefore, the issues outstanding in this review are:-

the charging of a fee at internal review,

the refusal of access to record number 20 relating to FÁS International Consulting,

the refusal of access to records relating to the Multi-Annual Budget and Estimates process,

the refusal of access to records relating to the European Social Fund.

In carrying out my review of the decision of the Department, I have had regard to the various submissions which you have made to this Office, to the submissions of the Department and a submission from FIC. I have decided to conclude my review by means of a binding decision. Scope of the Review

My review is concerned solely with the question of whether the Department was entitled to seek a fee at internal review and whether you are entitled to access to the records withheld by the Department concerning FIC and the funding of FÁS post-1999.

Scope of Review

Findings

I propose to deal with each of the outstanding issues in this review in turn.

The charging of the fee at internal review

I have examined the decision making records in this case. I note that your original request was in three parts and that the Department estimated the fee for search and retrieval at �49.50 and asked you for a deposit of �9.90. I understand that you were offered an opportunity to discuss possible amendments to the request which might reduce the fee and/or the deposit. You appealed the decision to impose a fee and you were provided with a detailed breakdown of the estimate. The decision to impose the fee was affirmed by the Department and an explanation of the position regarding fees and deposits was given to you. I note that there was some discussion over the method of payment, that you wished to pay in cash and that the Department facilitated this. I also note that in a letter dated 5 October 1998 you withdrew part of your request and resubmitted it as a separate FOI request. The effect of the withdrawal of the request was to bring the estimated search and retrieval costs below the level of �40.00 and no deposit was therefore sought in relation to your request of 5 October. A decision on the amended request did not issue within the four week period and you appealed the decision to internal review on the basis of non-reply. On internal review the Department sought a search and retrieval fee of�12.85 in respect of records which it was prepared to release.

In your submissions you argue that it is unfair to charge a fee at internal review as the Department failed to reply to your initial decision within the four week period. The Department argues that there is nothing in the Act to preclude the charging of a fee at internal review.

Before I consider the central matter of whether the Department is justified in charging a fee at internal review, I should state that I considered whether or not to discontinue this review on the grounds that your application is "frivolous or vexatious". I outlined my views on the meaning of this term as it is used in the FOI Act in my decision in case number 99151- Mr ABW and the Department of Enterprise, Trade and Employment and examined the question of what constitutes abuse of the provisions dealing with fees. I noted that ".. it seems to me that abuse could arise in two ways. The first is through requesters seeking to avoid the charges provided for by the legislation. An example of what I have in mind here is a situation where a requester, having been advised of the estimated fee to search for and retrieve records, seeks to access a lesser number of records thus reducing the fee. Such a requester might then seek to access the remaining records by making a second FOI application.......The second could arise through invoking the procedures in section 47(8) (which requires a head to specify the amendments to the request which would reduce or eliminate a deposit). Where the pattern of behaviour of the requester suggests that section 47(8) is being invoked for some purpose other than its true purpose, which is to see if any resolution of the question of the fee can be reached, then the public body might, in an appropriate case, conclude that this is an abuse of the Act. Such a conclusion might, in an appropriate case, also suggest that the request itself might be frivolous or vexatious." In my view, there is evidence in this case that you sought to circumvent the provisions of the FOI Act in relation to the charging of fees and deposits by withdrawing a part of the original request and resubmitting it as a new request in the same letter. However, as the Department did not decide that the request was frivolous or vexatious, I have decided, in this instance, to proceed on the basis that your request was not frivolous or vexatious.

The FOI Act provides that the head of a public body, having received a request for access under section 7, is required to estimate the cost of the search for and retrieval of the records and if, in his opinion, this is likely to exceed �40.00 then the public body must charge a deposit. If such a deposit is to be paid, the head must, not later than two weeks after the receipt of the request, seek payment of the deposit in writing. This deposit must be paid by the requester before the search and retrieval of the records can commence.

It is possible that the head may not consider that the estimated cost of search and retrieval will exceed �40.00 but may find, having carried out the process of search and retrieval, that the amount does exceed �40.00. I do not consider that the Act intended to prohibit the public body from charging the amount so arrived at. In my view, the provisions of section 47 do not to amount to a prohibition on the charging of a fee of more than �40.00 in circumstances where a head had initially formed an opinion that the estimated cost of search and retrieval was unlikely to exceed that amount.

I note that the provisions of section 47(7)(c) which require a public body to request payment of a deposit within two weeks of the receipt of the request cannot be applicable to an internal review situation. However, in my view, this does not prohibit a public body from charging a fee at internal review stage nor does it restrict the amount of any such fee to �40 or less.

As regards the amount of the fee, I am satisfied that, having regard to the number of records involved and the fact that they were contained in a number of separate files, the fee proposed by the Department is calculated in accordance with the Act.

Accordingly, I find nothing in the Act to preclude the Department from charging the proposed fee and I affirm its decision to do so.

Record number 20 - FÁS International Consulting (FIC)

The first page of record number 20 is a covering memorandum from FIC to the Department giving some background to the summary of the proposal which is attached. The summary of the proposal details the scope of the project concerned and the methodology to be employed by FIC in completing the project. The Department refused access on the basis of section 27(1)(b).

Section 27(1)(b) provides, among other things, that a head shall refuse access (subject to the public interest test in section 27(3)) if access "could" reasonably be expected to result in a material financial loss to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his business. It seems to me that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so.

I accept that the information in the summary of the proposal is of the kind envisaged in section 27(1)(b). The Department argues that disclosure of the record could provide a competitive advantage to competitors of FIC in relation to this proposal and any others in the future and that a decision on the proposal has not as yet been made. I accept that disclosure of the details of the methodology to be employed by FIC in completing the project might provide an advantage to a competitor and that therefore section 27(1)(b) applies in relation to the summary.

However, section 27(3) provides that section 27(1) does not apply in relation to a case in which the public interest would, on balance, be better served by granting than by refusing to grant the request. The proposal in the summary document is related solely to the commercial activities of FIC. It is not clear to me what aspect of the public interest would be served by releasing this document and, having regard to the possible damage to FIC which I have accepted might occur as a result of disclosure, I do not consider that the balance of the public interest favours disclosure of this part of the document.

I sought the views of FIC in respect of the disclosure of this record. FIC argues that the summary document is commercially sensitive and should not be disclosed. As I have noted above, I accept that section 27(1)(b) applies to this part of the record. FIC gave some consideration to the disclosure of the covering memorandum but argues that, as access to the summary document should be denied, disclosure of the covering memorandum which refers to the summary could prove frustrating to the requester. Apart from this comment, it did not explain how the covering memorandum might be exempt by virtue of section 27(1).

The Department argues, in refusing access to the covering memorandum, that partial release is not possible as disclosure of even the nature of the proposal could provide a competitive advantage to others. The Department has not explained how the knowledge of this proposal could impact on the competitive position of FIC, other than to suggest that it may attract the interest of other companies in the same business. It may be that in some situations the knowledge that a commercial company has put forward a particular proposal may, of itself, provide a competitive advantage to its rivals. However, the Department has not satisfied me that this knowledge could impact on FIC and I do not consider that it has justified its reliance on section 27(1)(b) in refusing access to this part of record number 20. Records relating to budgeting/estimates processThere are 46 records at issue here which were refused on the basis of section 20(1). They consist mainly of correspondence between FÁS and the FÁS Liaison Section of the Department relating to various issues of funding for the estimates process of 1999 and for the projections for 2000 and beyond. Some of the correspondence consists of tables, the completion of which is required under the Department of Finance Estimates circular. There are also two records from the Department of Finance outlining the parameters of the estimates process and also raising particular queries arising from the estimates.

Section 20(1) provides that "A head may refuse to grant a request under section 7

(a) if the record concerned contains matter relating to the deliberative processes of the public body concerned (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and

(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make."

For the exemption to apply, two requirements must be met. The first is that the record must contain matter relating to the deliberative process; the second is that disclosure must be contrary to the public interest. In this case, the Department, in common with other Departments and agencies, was considering various options in relation to its estimated financial requirements for the year and the projected three year estimates under the MAB process. I accept that the records in question in this case were part of and contributed to this process. I consider, therefore, that the first requirement is satisfied.

The Act clearly envisages that there will be cases in which disclosure of the details of a public body's deliberations - whether before or, in some cases, after a decision based on these deliberations has been made - would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest.

I can summarise the Department's arguments that release of records concerning the MAB and Estimates process is contrary to the public interest, as follows:

The deliberative process concerned never ends, but continues year in, year out. The release of estimates from Departments in advance of inter-departmental negotiations and deliberation by Government would totally undermine the estimates process and the workings of Government at the highest level.

The release of preliminary estimates could be used by lobby groups to interfere with and hinder the negotiations process.

Putting the positions of the various parties into the public arena would give a misleading impression of the funds available to FÁS in the years after 1999 and the level of service to be provided.

The public interest is not served by releasing data which is going to mislead.

The sensitivity of Estimates material lies in the fact that it contains some information on the overall Estimates/Strategy of the Department of Finance. Given that there is even sensitivity at cabinet level on such matters it would not be in the public interest to disclose related material.

Taking each of these arguments in turn, I accept that the release of records giving details of the negotiations between the Department of Finance and other Departments on the Estimates and projections for future years, during the course of those negotiations, may be contrary to the public interest. However, I fail to see how this argument applies once the Estimates and projections have been agreed and the Revised Estimates Volume published. It is true that both the projections and the Estimates may require subsequent revision which will entail further deliberations. Of itself, this is no reason to conclude that it would be contrary to the public interest to disclose the earlier deliberations. I cannot see how publication of the projections at or after the time of publication of the Revised Estimates Volume would undermine the Estimates process or the workings of Government.

In its original submission, the Department drew my attention to a number of records which refer to a proposal for the introduction of a training bonus for the Long Term Unemployed. The Department argued that the matter was still under discussion and that its introduction had not been sanctioned. It seems to me that where such a situation arises, a public body could argue that it is contrary to the public interest to disclose such matter before a decision on the proposal had been made. In this case, however, I understand that this bonus has been in place since April 1999 so that any case for withholding the records on this ground has long since disappeared.

I cannot see how the release of projections at or after the time of publication of the Revised Estimates Volume would allow lobby groups to interfere with and hinder future negotiations.

I have already indicated in other decisions that I do not accept that the fact that the contents of records might mislead means that release is contrary to the public interest. The argument that releasing certain information may mislead has to be based on either of two assumptions viz, that the public is not capable of properly understanding the information or that the information itself is wrong. I have already made it clear in other decisions that I am not impressed by arguments based on the need to protect the public from possible "misuse" of the information, nor is there any provisions in the Act to exempt the release of information on the grounds that it is factually inaccurate. In this case, the Department's concern is not that the proposed financial allocations for future years are incorrect but that they will almost invariably be changed when the actual allocations for the particular year are settled. One would imagine that this would be quite easy to explain to any member of the public who might query the figures.

I note the Department's argument about the 'sensitivity' of the records. In my view it is not sufficient for decision makers in considering the release of records under the FOI Act to concentrate on the 'sensitivity' of the records concerned. Where the records are held by the public body and come within the scope of the Act then the question which the decision maker must address is whether the records are exempt. For the reasons given above, I am not satisfied that the Department was justified in concluding that release of the records at issue would be contrary to the public interest. Accordingly I find that section 20 does not apply.

Records relating to post 1999 European Structural Funds negotiations.

These fourteen records are in the same format and are headed "DETE Human Resources Development Proposals for EU funding post 1999". Each of the documents proposes a particular scheme or activity and contains information about the funding required, the objectives of the proposal, the implementing body to carry out each project, how it complies with the 1998 National Action Plan for Employment and how it complies with Draft ESF Regulations.

Access to these records was refused by the Department under section 21(1)(c) of the Act on the basis that they form part of the Department's preparations for the EU Structural Funds negotiations for the period 2000-2006. Section 21(1)(c) provides that a public body may refuse to grant a request if access to the record concerned could, in the opinion of the head, reasonably be expected to

"(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body."

The Department has advised me that the Department of Finance co-ordinates Ireland's submission to the EU and is responsible for allocating Ireland's share of the funds received. It states that all the Departments are competing against each other to have their proposals prioritised by the Department of Finance. At the time of the decision, the ESF negotiations were ongoing and the Department was of the view that the disclosure of the records at that time would prejudice and hinder the negotiations. The Department was of the view that these considerations outweigh the public interest in favour of openness, transparency and accountability. In the light of the fact that the ESF negotiations had since concluded, Ms Ivory, in her letter to the Department of 27 October, 2000, suggested that the balance of the public interest was now in favour of release. In response the Department argues that, while the full programme of measures and budgets is concluded (though not yet published), the expenditures and activities are monitored closely by both the Department of Finance and by the European Commission. It argues that the Structural Funds programmes are therefore in a permanent state of negotiation. The Department considers that the publication of negotiating assumptions would weaken the Government's position in dealing with those negotiations.

I take the view, in light of the material before me and the arguments presented by the Department, that the Department was correct to refuse access to these records on the basis of section 21(1)(c) at the time of the decision, given that the negotiations to which they relate were still in train. However, it remains for me to consider whether, in accordance with section 21(2), the public interest would be better served by release of these records. In doing so I have to take account of the fact that the negotiations in question have since concluded. I have also to take account of the fact that section 21(1)(c) does not contain a harm test (unlike section 21(1)(a) and 21(1)(b)). A record is capable of qualifying for exemption under section 21(1)(c) despite the fact that any negotiating positions, plans etc. which it might disclose relate to past negotiations and even if such positions, plans etc. are of no conceivable relevance to any current or future negotiations. While section 21(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations in some way or to cause some other harm and disclosures which do not, it seems to me that such a distinction should be made in applying the public interest test in section 21(2) to records which disclose positions taken etc. for the purposes of past negotiations. Put simply, if release of such records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of Government means that, in the absence of any other applicable exemption, the records should be released. On the other hand, if access to records which disclose positions taken etc. for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test.

In the present case, the Department has expressed concern that the publication of negotiating assumptions would weaken the Government's position in defending the share of European Structural Funds which it has negotiated and which is subject to alteration of activities on foot of recommendations by the European Commission. If this were true then it is clearly a matter which would have to be taken into account in applying the public interest test. However, it is not clear to me how or why the Government's position would be weakened in the manner suggested. More to the point, I cannot see how any such disadvantage would arise from disclosure of the specific records at issue in this case which I have examined carefully. The Department has not attempted to justify its position by reference to any particular record or part of a record. In the circumstances, I find that the public interest would be better served by release in this case.

Decision

Having completed my review under section 34 of the Act, I affirm the decision of the Department to charge a fee at internal review and I vary the decision in respect of the refusal of access to these records and direct that the Department give you access to all the records refused with the exception of the attachment to record number 20.

A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.